Due Process in Antitrust Proceedings Before the European Commission: Fundamental Rights are Not Enough

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Martin Mollmann, Jun 16, 2014

In 2011, the European Court of Human Rights issued its widely noted Menarini judgment, stating that an administrative body may impose competition law penalties (which constitute criminal law sanctions) without infringing Article 6 ECHR, as long as the parties have the possibility to appeal such decisions before a tribunal with full jurisdiction as to facts and law, not merely to review legality.

While it can still be doubted whether this is the final word of the ECtHR (the judgment was not issued by the Grand Chamber and Judge Albuquerque issued a strong dissenting opinion), and also whether the CJEU fulfills the criteria of full judicial review, there could be a temptation for the Commission to consider that Menarini closes, once-and-for-all, the above mentioned debates regarding the combination of investigative and adjudicative functions.

However, even if Menarini is construed as excluding any possibility that the EU enforcement system infringes the right to a fair trial (which, again, is doubtful), would this mean that the system is bullet proof against other criticisms? Is this really the end of the debate on the combination of investigation and decision-making powers?

It is submitted that the impact of the Menarini judgment should not be overestimated. An enforcement system does not become adequate simply because it does not infringe fundamental rights. Compliance with such rights should be seen as a minimum mandatory standard, not an achievement. Despite the Menarini judgment, bold reforms to the Commission’s antitrust enforcement structure are still necessary. Indeed, such reforms would reinforce the Commission’s antitrust policy.


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Due Process in Antitrust Proceedings before the European Commission: Fundamental Rights Are Not Enough